How will history judge the military commissions?

In the coming weeks, in what will be one of the most important and consequential rulings in the military tribunals at Guantánamo Bay in Cuba, military commission judge Col. Douglas Watkins will have to consider how the torture of a prisoner in U.S. custody should be acknowledged and addressed in the disposition of the prisoner’s legal motion for a sentence reduction filed in May 2019.

The prisoner, Majid Khan, pleaded guilty in 2012 to acting as a courier for al Qaida and agreed he would testify against Khalid Sheikh Mohammed, the alleged mastermind of the September 11, 2001, terrorist attacks. When Majid Khan entered his plea, Brigadier General Mark S. Martins, the chief prosecutor for the military commissions, proclaimed that  “this system is fair” and clearly hoped the Khan case would showcase the Office of Military Commissions’ motto of “Fairness, Transparency and Justice.” But in the years since, the proceedings of the commissions have repeatedly foundered on the shoals of due process violations and secrecy—and especially the extreme secrecy surrounding the treatment of those who, like Majid Khan, were held and tortured in CIA black sites before they were transferred to Guantánamo Bay.

A challenging factor for Judge Watkins in deciding Khan’s case is that Khan was the victim of sustained and brutal torture at the hands of the CIA. It was torture carried out in secret and that the CIA managed to keep secret for years. There was no official acknowledgement of the torture at the time Khan entered his plea deal in 2012, but with the release of the Senate Intelligence Committee’s 2014 report on the CIA’s torture program and the declassification of Khan’s own descriptions of the torture in notes compiled by his lawyers, the full extent of abuses Khan endured for more than three years is now in the public record.  On May 1, 2019, Khan filed a motion under Article 13 of the Uniform Code of Military Justice requesting a reduction in his sentence due to the CIA’s torturous conduct. As pointed out by Scott Roehm, who leads the policy work of The Center for Victims of Torture, Judge Watkins is in a novel position: this is the first time a military commission must decide whether to provide some form of reparation for a CIA torture victim.

While there is much at stake for Khan, there is also much at stake for America.  That is why I, along with former U.S. Navy General Counsel Alberto Mora, former U.N. Special Rapporteur on Torture Juan Mendez, Dr. Sondra Crosby, retired Brigadier General Stephen Xenakis, MD, Rev. Ron Stief, and Professor Claire Finkelstein joined the Center for Victims of Torture in the filing of an amicus brief requesting Judge Watkins to take into account in his ruling Kahn’s torture and pre-trial punishment. For me, and for many of us who served our country to protect our Constitution and our values, this is a long overdue first step toward restoring the legitimacy of a judicial process that began with the goal of bringing terrorists to justice but that has been so corrupted and undermined by torture.

On September 25, 2002, I boarded a Cessna Citation UC-35 military jet on Leeward Airfield at Naval Station Guantánamo Bay bound for the National Capitol Region.  I was returning to the headquarters of the Department of Defense (DOD) Criminal Investigation Task Force (CITF) after a visit to the Guantánamo Bay prison. I was the Deputy Commander of the CITF and the U.S. government’s chief investigator of the al Qaida terrorist network for trials before military commissions.  I was chief operating officer, or special agent-in-charge, of an investigative task force established exclusively for the purpose of bringing terrorists to justice before military commissions.  Although I was a career special agent of the Naval Criminal Investigative Service (NCIS), I was detailed to the U.S. Army, and I reported to the Office of Chief Counsel for Secretary of Defense Donald Rumsfeld.

The orders I was responsible for executing came from the 43rd president of the United States, George W. Bush. As commander-in-chief of the armed forces, and based on the 2001 congressional Authorization for the Use of Military Force (AUMF) joint resolution and his own declaration of national emergency, President Bush issued a Military Order on November 13, 2001, on the Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism.

In this Military Order, President Bush issued a finding that international terrorists had attacked the United States and created a state of armed conflict that required the use of the Armed Forces, as the threat risked the continuity of operation of the U.S. government.  The president found that to protect the United States and its citizens, individuals subject to his order were to be tried for violations of the laws of war by military tribunals, and that the principles of law and rules of evidence generally recognized in trials before federal courts in the United States were “not practicable.”  The terrorist suspects I was responsible for investigating were those subject to this military order when:

1) there is reason to believe that such individual, at the relevant times,

    (i) is or was a member of the organization known as al Qaida;

    (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

    (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and

(2) it is in the interest of the United States that such individual be subject to this order.

The president ordered under Section 3 that individuals subject to his military commission order shall be treated humanely and afforded adequate food, drinking water, shelter, clothing, and medical treatment; and under Section 4, receive a full and fair trial. 

I was charged with building an investigative task force and developing those processes, rules, and regulations; standard operating procedures; and investigative methodologies to support this new military commission process. As the NCIS Chief of Counterintelligence Operations for the Europe, Africa, and Middle East Division, I had overseen the investigation into the attack on the USS Cole (DDG-67) in Aden, Yemen, in October 2000, as well as participated in the investigation of Sheik Omar Abdel Rahman and the terrorist cell in New York City plotting to blow up the United Nations and other landmarks in the 90s, so I was not unaccustomed to major terrorist investigations.  What was new to all of us was the military commission as the venue to bring terrorist suspects to justice. 

It was this order and the military commission process that brought me to Guantánamo Bay on September 25 to meet with some of the most senior and powerful lawyers in the country, who were reportedly coming to Guantánamo to be briefed on the status of the investigation of terrorist suspects.  The visiting delegation included Alberto Gonzalez, White House Counsel; David Addington, Counsel to Vice President Dick Cheney; John Rizzo, acting-Chief Counsel of the CIA; Michael Chertoff, Chief of the Criminal Division of the Department of Justice; and Jim Haynes, Chief Counsel for Secretary Rumsfeld, the office I reported to.  For me, the timing was also critical, as the JTF-170 Commander at Guantánamo, who was responsible for intelligence interrogations of Guantánamo detainees, was seeking authorization to use abusive methods similar to those being used by the CIA.  My intention was to dissuade them from considering abusive practices because they were unlawful, unnecessary, and counterproductive in seeking to bring terrorists to justice. The meeting never occurred.

What I didn’t know at the time is that these attorneys already knew details of the CIA torture program. On September 17, 2001, President Bush had issued a Memorandum of Notification (MON) authorizing the CIA to establish what became known as the Rendition, Detention and Interrogation (RDI) program for which lawyers in the Office of Legal Counsel (OLC) would provide the legal cover that would sanction torture in a covert program nobody was ever supposed to find out about.  President Bush signed this MON on the 214th anniversary of the signing of the U.S. Constitution by George Washington and 38 other delegates at the Constitutional Convention in Philadelphia. A week after the lawyer delegation visited Guantánamo, the practices established under that MON for the CIA began to metastasize within the DOD, which would proceed in earnest when a senior CIA lawyer explained the details for the military to adopt.

On October 2, 2002, Jonathan Fredman, Chief Counsel to the CIA’s Counterterrorist Center (CTC), attended a GTMO meeting at Guantánamo that was dominated by discussions of aggressive interrogation techniques, including sleep deprivation, death threats, and waterboarding, and stated that “[i]t is basically subject to perception. If a detainee dies you’re doing it wrong.” By October 11, 2002, the JTF-170 Commanding General had requested authority to use the same “aggressive interrogation techniques” used in the CIA torture program. These included stress positions, exploitation of fears (such as fear of dogs), removal of clothing, hooding, deprivation of light and sound, and the so-called wet towel treatment or the waterboard. The U.S. military was about to embark on a program of sanctioned torture based on the CIA’s representations that the program was safe, necessary, and effective, all of which have been conclusively disproven by subsequent investigations. 

The abusive tactics were based on the manner in which Communist adversaries interrogated captured U.S. military personnel, often producing false confessions and propaganda information. Euphemisms were created to mask the horrors of these programs. The DOD decided on “Counter Resistance Techniques” (CRT), while the CIA landed on “Enhanced Interrogation Techniques” (EIT). There was nothing enhanced about them, however.  In fact, the public record reflects those practices hardened resistance. CRT and EIT were nothing more than excuses to inflict torture, and that is exactly what occurred. The military used the term “Battle Lab” to offer an air of legitimacy for the program without regard for the negative connotations such terminology could evoke regarding human subjects testing and Nuremberg violations. 

The classified nature of their actions offered some protection against the world’s finding out about them, in spite of warnings from people like me that “there are no secrets, only delayed disclosures.” While not declassified by the CIA until 2016, a CIA November 26, 2001, legal analysis plainly revealed that the crime of torture under both U.S. and international law was clear from the onset and that the use of torture was debated as a policy option. In a document titled “Hostile Interrogation Legal Considerations For CIA Officers,” the drafters stated: “A policy decision must be made with regard to U.S. use of torture in light of our obligations under international law, with consideration given to the circumstances and to international opinion on our current campaign against terrorism—states may be very unwilling to call the U.S. to task for torture when it resulted in saving thousands of lives.” Thus, there is documentary evidence of a clear strategy.  The drafters concluded that claims of saving lives would mitigate the absolute legal prohibitions against torture. These policies were based on fear, ignorance, and arrogance, but the hopes for impunity rested on the perception of effectiveness.

While I had no control over how the CIA handled prisoners in their custody, I was a senior DOD counterterrorism official, with an operational mission to bring terrorists to justice, as well as to treat them humanely, so when the CIA came to Guantánamo to facilitate the spread of torture policies within the military, I had a duty to engage the issue. 

Within weeks of the Guantánamo visit of the distinguished lawyers, DOD torture authorizations were being written and command structures were being changed to replicate the CIA EIT program and the harsh and brutal treatment of prisoners not officially designated as high-value targets of the EIT torture program. A key element of these programs involved establishing a condition of learned helplessness through a series of abuses designed to create debility and dependency of and dread by its victims. Dehumanization to an infantile state required intelligence officials to control the conditions of confinement, to control every facet of a prisoner’s existence. There were two military task forces at Guantánamo:  JTF-160 for custodial operations under military police doctrine, and JTF-170 for the intelligence interrogations. They were to be combined to establish JTF-GTMO, which would unify the commands and the control over how prisoners were treated.

On October 28, 2002, I first met MG Geoffrey Miller, the incoming commander of JTF-GTMO, and it was apparent that the CITF and I would impede his mission to execute his new orders to implement the DOD torture policies. That same day, I was informed that the Joint Chiefs of Staff at the Pentagon had received the request to authorize the type of torture described at the GTMO meeting on October 2, 2002.  I wanted to establish my own documentary record and preserve evidence of what I concluded was a conspiracy to commit war crimes. I wrote an e-mail to the CITF Commander and our senior leadership team with my assessment and cited comments from the CRT meeting minutes that stretched beyond the bounds of legality, including “if a detainee dies you’re doing it wrong,” “any of the techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual,” and “medical personnel should be present to treat any possible accidents” seem to stretch beyond the bounds of legal propriety. In my opinion, these statements would shock the conscience of any legal body, adding that “somebody needs to be considering how history will look back at this.”

Just weeks later in November 2002, Gul Rahman died in a dark dank CIA chamber of horrors, naked from the waist down and chained to a wall in what was known as a stress position, where he apparently froze to death. The detainee died, so they did it wrong. That case never made to the military commission process, but the ACLU brought a lawsuit in federal district court in Spokane, Washington, on behalf of other detainees and Gul Rahman’s family. 

The two psychologists credited with the establishing the torture program, James Mitchell and John “Bruce” Jessen, settled the suit and while the terms are sealed, it was a victory for the ACLU and plaintiffs. The lawsuit forced John Rizzo, the CIA lawyer visiting Guantánamo, and Jose Rodriguez, the CIA official with oversight of the torture program, to testify under oath about the its establishment and the inexperience of those involved.

Now almost 17 years later, the military commission process has an opportunity to shape how history will look back on this and if the treatment of Majid Khan has any ramifications.  According to the executive summary in the Senate Intelligence Committee’s 2014 report on the CIA’s torture program, Mr. Khan “was subjected by the CIA to sleep deprivation, nudity, and dietary manipulation”; shackled to the ceiling for long periods of time; and likely “immersed in a tub that was filled with ice and water.” Without evidence of medical necessity and apparently as an additional means of behavioral control, Mr. Khan was also subjected to involuntary “rectal feeding” and “rectal hydration.” Specifically, the CIA “pureed” Mr. Khan’s lunch and pumped it into his intestines through a tube forced into his rectum against his will. Additional sessions of “rectal feeding” and “hydration” followed.

Majid Khan may not have died during his interrogation, but it is quite clear the CIA did wrong in torturing him, violating the inalienable human rights America was founded upon. Mr. Khan suffered harms that he will carry for the rest of his life.  The question is now whether that depraved treatment will shock the conscience of the military commission judge reviewing his sentencing agreement, and if the judge will give him administrative credit for the torture and other forms of cruel, inhuman, and degrading treatment he endured. In short, Judge Watkins will have to decide whether we are now a nation willing to excuse torture up to the point of death or if the torture Mr. Khan suffered remains a crime under military, civilian, and international law that must be recognized and redressed.

Mark Fallon was a special agent with the Naval Criminal Investigative Service (NCIS) for 27 years and the former special agent in charge (SAIC) of an investigative task force established exclusively for bringing terrorists to justice before military commissions. He is the author of Unjustifiable Means: The Inside Story of How the CIA, Pentagon, and US Government Conspired to Torture (Regan Arts, 2017). He is currently an international security consultant and a member of CERL’s Advisory Council.

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How will history judge the military commissions?